ENFORCEMENT MEASURES TO RECOUP ESTABLISHED DUTIES AND TAXES REGULATIONS

SUBSIDIARY LEGISLATION 337.47

ENFORCEMENT MEASURES TO RECOUP

ESTABLISHED DUTIES AND TAXES REGULATIONS

16th November, 2021

LEGAL NOTICE 440 of 2021, as amended by Act XII of 2023.

The title of these regulations is the Enforcement

Measures to Recoup Established Duties and Taxes Regulations.

In these regulations, unless the context otherwise

requires

"Act" means the Import Duties Act;

"Commissioner" means the Commissioner for Revenue as

provided for in the Commissioner for Revenue Act;

"duty" means any duty charged by the Commissioner for

Revenue on imported goods and includes import duty, export duty,

agricultural duty, anti-dumping duty, countervailing duty but does not

include excise duty;

"taxes" include value added tax.

When an amount of duty, taxes or interest remains unpaid

after ten (10) days from the notification to the debtor of the amount

due, the Commissioner may immediately take the administrative and

procedural measures necessary so that payment is effected, including

not giving any Customs service to the debtor until payment is effected.

(1)

When an amount of duty, taxes or interest remains

unpaid after ten (10) days from the notification to the debtor of the

amount due, the Commissioner may immediately proceed sequentially

from paragraph (a) to paragraph (c), until the first moment when the

full amount of duty, taxes and interest is paid

(a)

appropriate any security or deposit made by the

debtor for the payment of duty, taxes and interest, and

(b)

seize and take possession of goods belonging to

the debtor which are under Customs supervision or in

temporary storage, and

(c)

seize and take possession of goods belonging to

the debtor which have been released in free circulation, which

are found in any warehouse or premises used by, or in the

possession of the debtor or any other person in his stead.

(2)

The goods mentioned in paragraphs (b) and (c) of sub-

regulation (1) shall in virtue of this regulation constitute a security for

such duty, taxes and interest, and the Commissioner may sell such

goods by means of a public call for tenders after giving the debtor a

notice of sale not less than eight (8) days before the sale. This notice

shall be given to the debtor, and if the debtor cannot be found, the

notice shall be published in the Gazette

Provided that the goods may, in the discretion of the

Commissioner, be destroyed after the eight (8) day notice is given

Provided further that if there is the sale of goods and

there are pending proceedings under these regulations or procedures

that contest the amount due, the proceeds of the sale of the goods shall

be kept as a deposit and disposed of as ordered by the court.

(3)

The cost and expenses of the seizure and sale, and the

duty, taxes and interest recoverable under such sale, shall be a first

charge on the proceeds thereof. Such proceeds shall be applied in or

towards the payment of such costs and expenses and in or towards the

payment of the duty, taxes and interest and the surplus, if any, shall be

given to the debtor.

(1)

Where any duty, taxes or interest that is to be

collected by virtue of the Act is to be paid for by any legal person, as

defined in article 4(e) of the Interpretation Act, any secretary, director

or other officer of the legal person is to be held jointly and severally

liable with the same legal person for the duty, taxes or interest due, in

accordance with the provisions of this regulation

Provided that for the purpose of this regulation, any

secretary, director or officer shall refer only to those persons who fulfil

an official function listed in the constitutive document of that legal

person

Provided further that when such official function is

fulfilled by a legal person, the natural persons that fulfil an official

function in that legal person as referred to in this regulation, shall be

jointly and severally liable with that legal person administering the

legal person which owes any duty, taxes or interest by virtue of the

Act, and in the same way, other natural or legal persons that fulfill an

official function in legal persons in various layers and which

administer each other, shall also be jointly and severally liable with the

legal person that owes duty, taxes or interest in so far as they

administer it through each other

Provided further that when any of the aforementioned

natural persons is deceased, his heirs shall be jointly and severally

liable for any duty, taxes or interest due, even if these heirs have

inherited the deceased with the benefit of inventory.

(2) Any secretary, director or other officer shall not be held

jointly and severally liable with the legal person if he proves that

he acted in good faith and

(a) that he had under his management or control any funds

or property belonging to or due to the person of whom

he is a representative and before disposing of any such

funds or property he had made adequate provision for

any tax due under this Act; and

(b) that he was not involved in a decision that is in breach

of any obligation under customs legislation; and

(c) that he knew that there was no prospect that the legal

person liable to pay duty, taxes or interest would not

be able to meet its duty, taxes or interest obligations.

(3)

Any secretary, director or other officer who is held

jointly and severally liable by virtue of sub-regulation (1) may request

the competent court, by means of an application filed within two (2)

months from notification of a judicial letter served on him demanding

payment, to declare that he is not to be held jointly and severally liable

with the legal person, for the reasons provided in sub-regulation (2)

Provided that the judicial letter shall on pain of nullity

state that if an application opposing the claim is not instituted within

two (2) months from notification of the judicial letter, the secretary,

director or other officer shall be held jointly and severally liable with

the legal person

(4)

(a)

It shall not be a defence for any secretary, director

or other officer to state he did not know that legal proceedings were

instituted against the legal person that might reduce the amount of

assets of that legal person;

(b)

It shall not be a defence for any secretary, director or

other officer to state that it was impossible for him to know the exact

amount of duty, taxes and interest due by the legal person administered

by him.

(1)

Any amount of duty, taxes or interest which

constitutes an executive title in favour of the Commissioner may be

collected by the Commissioner according to law, including the right of

the Commissioner to register a note of privilege in the public registry

or in the land registry, as the case may be, for the amount of duty, taxes

or interest which constitutes an executive title, and that note of

privilege may be registered by any lawyer or notary.

(2)

The provisions of Title XXIII Part II Book Second of the

Civil Code which regulate privileges shall apply mutatis mutandis for

sub-regulation (1).

(1)

Any person that feels aggrieved by the

Commissioner’s action taken by virtue of these regulations, except the

action taken in accordance with regulation 5, shall have the right to

oppose that action by presenting an application before the

Administrative Review Tribunal within thirty (30) days from the date

that he receives notice on the action taken by the Commissioner, and in

the absence of proceedings before the aforementioned Tribunal, the

claim on the objects seized shall be deemed to be abandoned.

(2)

An application made by virtue of sub-regulation (1) shall

be served on the Commissioner within two (2) days of filing, and the

cause shall be appointed for hearing with urgency.

(3)

The Tribunal shall only hear claims regarding the

enforcement measures under these regulations and shall not decide any

other claim relating to whether the amount of duty or taxes is due or

relating to the quantum of the amount.

(4)

The provisions of articles 792, 793 and 794 of the Code

of Organization and Civil Procedure shall apply mutatis mutandis to

the proceedings under this regulation.

There shall be no right of action against the

Commissioner for damages caused by any enforcement measure under

these regulations, except when it is proven that the Commissioner

acted in bad faith.